An administrative lawyer is comfortable in recommending that the policy/operational distinction should be abolished. Yet the idea that it would be unfair in some instances to impose liability for difficult decisions taken in difficult decision-making contexts is one to which someone mindful of contemporary administrative-law jurisprudence would nonetheless be sympathetic. Administrative law’s rejection of absolutism gives rise to two possibilities: one, that the policy/operational distinction could be subsumed into the other stages of the duty of care analysis; two, that it could be taken into account in assessing whether the government agency discharged its standard of care.

Duty of Care: a Holistic Approach

If courts took an administrative law approach to state liability, the claims of the policy/operational distinction to categorically exclude some decision-making from liability would not be given absolute effect. Rather, the “policy considerations” they embody would be treated as one factor in the analysis, weighing against the imposition of a duty of care. They would have a relative value, not an absolute value. If other considerations weighed strongly in favour of liability, a duty of care would be imposed.[1]

For example, in Imperial Tobacco, the potential ‘chilling’ effect on government officials who wish to explore harm-reduction strategies does not seem to outweigh the repeated exhortations to the tobacco industry to travel down the soft-tar cigarette path.

But policy considerations might sometimes be weightier. Brown is an example of a case in which a court might legitimately be concerned that the imposition of liability in respect of a negotiated work schedule would pose difficulties for future relationships between public authorities and unions. Here, the prospect of an undesirable ‘chilling’ effect seems plausible.

Standard of Care

Administrative law presents a second possibility: that the “policy considerations” underpinning the policy/operational distinction could be addressed at the second stage of the negligence analysis, in determining whether the government agency met the required standard of care.[2] I do not suggest that establishing that the decision in question was unlawful, unreasonable or procedurally unfair should be made a condition precedent to a finding of liability; this is a matter for administrative law rather than the law of tort.[3] Rather, I suggest that awareness of administrative law concepts may assist courts in determining whether a public authority has met its standard of care.

The concept of the “range” of reasonable outcomes can expand or contract by reference to economic, social and political considerations. As Stratas J.A. has explained:

In some cases, Parliament has given a decision-maker a broad discretion or a policy mandate – all things being equal, this broadens the range of options the decision-maker legitimately has. In other cases, Parliament may have constrained the decision-maker’s discretion by specifying a recipe of factors to be considered – all things being equal, this narrows the range of options the decision-maker legitimately has. In still other cases, the nature of the matter and the importance of the matter for affected individuals may more centrally implicate the courts’ duty to vindicate the rule of law, narrowing the range of options available to the decision-maker.[4]

One might add Binnie J.’s suggestion that the “highest standard of deference” is presumptively appropriate when reviewing exercises of discretion by high-level executive officers. In Mount Sinai Hospital Centre v Québec (Minister of Health and Social Services),[5] the minister’s remit to regulate in the public interest favoured

…a high degree of deference, as does the expertise of the minister and his advisors, not to mention the position of the minister in the upper echelon of decision makers under statutory and prerogative powers. The exercise of the power turns on the minister’s appreciation of the public interest, which is a function of public policy in its fullest sense.[6]

A decision-making process must also bear the hallmarks of justification, transparency and intelligibility, but these too depend on context. For example, in the case of a municipal taxation by-law, adopted after public debate rather than an adjudicative hearing, the appropriate question for the court to ask was whether the by-law was one that a reasonable municipal authority could adopt.

Deferential review, in the form of a reasonableness analysis that is context-dependent, allows the intensity of judicial review to be reduced in appropriate cases. To borrow from an English commentator: “[i]t is the variable standard of deference which allows the courts to afford a degree of respect to the decisions of elected bodies and which has come to mean that while action taken at what might have been called the fringes of justiciability may be reviewable per se, it may not necessarily be subject to intensive review in practice”.[7] As McLachlin C.J. put it in Hill, recognizing a tort of negligent police investigation, “[a] flexible standard of care appropriate to the circumstances” can be imposed instead of excluding tort liability altogether on the basis of policy considerations.[8] No floodgates would be burst open by such an approach.[9]

For example, in a case like Brown, one would ask whether adequate consideration was given to risk for the public resulting from an agreement with the union for limited work hours and if, in all the circumstances, the public authority had struck an appropriate balance between the need to ensure workplace harmony and the public interest in road safety. And in Imperial Tobacco one might wish to analyze the evidence on which government policy was based to determine whether the public-health risks of tobacco were given appropriate weight in the decision to promote low-tar cigarettes.

[2] For an illuminating discussion, see Tom Hickman, “The Reasonableness Principle: Reassessing its Place in the Public Sphere” (2004), 63 Cambridge Law Journal 166.

[3] See also Montambault c. Hôpital Maisonneuve-Rosemont, [2001] R.J.Q. 893 (C.A.), where Deschamps J.A. (as she then was) endorsed a two-step test: first, consider whether the decision attacked is unreasonable in an administrative law sense – if yes, then the decision can give rise to liability if tortious; if no, move to the second step, whether the decision was nonetheless non-justiciable because it required the balancing of social, economic or political factors. This approach has the merit of not making unlawfulness the touchstone of tortious liability, but it is nonetheless unnecessarily complex. In my view, administrative law principles should be relied on expressly only where a public authority claims a defence of statutory authority. In those circumstances, an analysis of the lawfulness of the decision is required, for if the authority acted illegally, unreasonably or procedurally unfairly, it acted outside its statutory authority can cannot rely upon it as a defence. See Brown v. British Columbia, [1994] 1 S.C.R. 420, at p. 435, confirming that it is generally unnecessary in a lawsuit pitting a plaintiff against a public authority defendant to determine as a preliminary matter that a “policy was bona fide and reasonable or rational”.

[7] Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (Cambridge: Cambridge University Press, 2011), p. 104.

[8]Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 S.C.R. 129, at para. 55. See also Fullowka, at para. 73, “any tension between the broader public interest with the immediate demands of safety may be taken into account in formulating the appropriate standard of care”.

[9] It may also be the case that the inherently unstable, fact-sensitive distinction between policy and operations prevents it from playing a meaningful gate-keeping role: see e.g. Attis v. Canada (Minister of Health) (2008), 93 O.R. (3d) 35, at para. 76; Barrett v. London Borough of Enfield, [2001] 2 A.C. 550, at pp. 586-587, per Lord Hutton.